2009: A Law Odyssey

Tiptoeing into the New Year, we can expect some surprises ahead. The UK's new
Supreme Court and the International Criminal Court will both stand trial.
And there will be new openings for lawyers — as others are shown the
door.

By Joshua Rozenberg

12:01AM GMT 01 Jan 2009

The only thing we can predict with any certainty about legal developments in 2009 is that they will be unpredictable. But informed guesses are always worth a try at this time of year — even if they may offer a hostage to fortune. So here goes.

Although the recession is likely to generate more insolvency and restructuring work, I fear that plenty of lawyers will lose their jobs in the next 12 months. Now is not the time to be a conveyancer — either residential or commercial — or to specialise in mergers and acquisitions.

The big City practices work on the assumption that their partners and associates will leave on a fairly steady basis, taking up jobs in industry or joining other firms. That has not been happening recently. But the reduction in work is no reason to freeze recruitment, provided partners are prepared to accept lower earnings for a while.

Those who run these firms are old enough to remember the last recession. One told me recently that it would be disastrous to stop taking trainees. That would leave the firm without a generation of new associate solicitors in two or three years’ time, just as the economy was beginning to pick up.

Looking further afield, the world’s only permanent international criminal court should begin its first trial this month. Note my use of the word “should”. I see I reported three years ago that Luis Moreno-Ocampo, prosecutor at the International Criminal Court, was confident that the trial would begin in 2006.

This was not to be. As I disclosed last June and explained in subsequent reports, Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo, was very nearly released last year because of Mr Moreno-Ocampo’s failure to let the defendant’s lawyers see potentially exculpatory evidence.

After the prosecutor had finally complied with his legal obligations, the trial was rescheduled to begin this month. But then, as I reported just before Christmas, Ekkehard Withopf, the senior trial lawyer who had worked on the Lubanga prosecution for more than four years, was taken off the case by Mr Moreno-Ocampo. There is no suggestion that this had anything to do with the quality of Mr Withopf’s work and he remains employed at the court. But it puts the remaining prosecutors at a considerable disadvantage.

We are told that the Lubanga prosecution will now be led by Fatou Bensouda, Mr Moreno-Ocampo’s deputy. An expert in international maritime law from The Gambia, Mrs Bensouda ran a bank there after serving in many of her country’s leading prosecutorial and government posts. Immediately before joining the International Criminal Court she was senior legal advisor at the International Criminal Tribunal for Rwanda.

It will be interesting to see how Mrs Bensouda gets on as an advocate when she appears before Sir Adrian Fulford, the non-nonsense Old Bailey judge who is to preside over Lubanga’s trial. There were rumours in The Hague that Mr Moreno-Ocampo wanted the distinguished London-based lawyer Sir Desmond de Silva QC to take Mr Withopf’s place in the prosecution team. But Sir Desmond told me before Christmas that he had not been approached. If he had been offered the brief, he would have requested a substantial adjournment to prepare for the trial.

I am sure the court would not have granted it. For one thing, the defendant has spent nearly three years on remand in The Hague, preceded by a year’s detention in Kampala. For another, in order to take on the Lubanga trial Sir Adrian has had to give up an appointment that would have enhanced his position in the English judiciary: he was to have started today as a presiding judge in the South-Eastern Circuit.

So if Mrs Bensouda is not now in a position to prove her case, the defendant will have to be acquitted. For more than a decade, the international community has devoted huge amounts of work and more than a little money into establishing the International Criminal Court. Its reputation now rests on the shoulders of one woman.

Back home again, spring should see the first shoots in the restructured legal profession of England and Wales. By April, the Law Society is expecting to see the creation of so-called legal disciplinary practices — including barristers, other lawyers and up to 25% of non-lawyers offering ancillary services.

In itself, this is unlikely to have a huge impact on legal services — not least because of the recession. The real Big Bang in the legal profession will not come until "alternative business structures" are licensed, probably in three years’ time. Non-lawyers will be allowed to invest in law firms for the first time and we may see legal practices floated on the Stock Exchange.

On October 1, the House of Lords will cease to be the final court of appeal for most of the United Kingdom. All but three of the current law lords, together with some new recruits, are to troop across Parliament Square and become the first justices of the Supreme Court.

How much difference this will make in practice is a matter of lively debate. Logically, there should be no change in the new court’s role and functions. But the life of the law is not always logical. I discussed the changes with two of the new judges in an interview that you can read here.

The most intriguing question for 2009 is whether it will mark the publication of Lord Saville’s report into the Bloody Sunday shootings.The law lord finished taking evidence from all but a handful of witnesses in February 2004 and heard closing speeches in November of that year. He made it clear at the time that he planned to submit his report to the Government in the summer of 2005. Last year, he told surviving relatives of those killed in 1972 that the inquiry team was not likely to publish its report before the autumn of 2009. But I wouldn’t hold your breath.

Also in the spring, we can expect the family courts to be opened to “accredited reporters”, subject only to anonymity provisions. As I explained in a commentary last month, I have concerns about this concept: government officials should not have the final say over who is a journalist.

And this raises some important questions in which I have more than a passing interest. I have had the misfortune to have been the last full-time, legally-qualified legal correspondent employed by both the BBC and The Daily Telegraph. There is now less coverage and analysis of law, politics and other demanding topics in the mainstream media than there was even a decade ago. Some newspaper titles are under threat.

In recent years we have seen the creation of an impressive trade press, chronicling the success or otherwise of lawyers and their practices. But the serious general reader looking for rigorous reporting has had to turn to the internet. As newspapers have shrunk, their on-line coverage has expanded.

Although this may not been immediately obvious to website readers, none of the stories and commentaries I have published on www.telegraph.co.uk/law since September 2008 has appeared in print. This is the last of them: the Telegraph has terminated my contract. But I plan to resume these reports, before long, on my own website — www.rozenberg.net — unless, of course, somebody makes me a better offer in the meantime.

I regard this as journalism rather than blogging, and not just because I would like to retain such journalistic credentials as a Parliamentary pass and access to the family courts. According to my definition, blogging consists largely of opinion whereas journalism is primarily about news.

And blogging is also a way of by-passing the normal constraints of journalism. For example, it is now possible for the courts to issue an injunction which bans any public reference to its existence. I cannot tell you whether I have ever seen such an injunction — or at least, one that may still be in force — because to do so would be to breach it. But a very well-read blogger has recently done just this. If I were to link to that blogger’s website, I would be at risk of putting the Telegraph in contempt of court and I have no intention of doing this — tempting though it might be to test the law.

One media commentator recently suggested that the BBC should not permit staff journalists to be as opinionated as they currently are in the blogs that the BBC itself publishes on-line. His concern was that “the old distinction between reporters and pundits has widely broken down”.

Since the BBC is not permitted to express its own opinions in the way that newspapers do in their editorials, it is arguable that BBC correspondents should not express their personal views on a BBC website. But when I worked for the BBC I never had any difficulty in distinguishing between personal opinion and informed commentary. I also recall a distinguished director-general ruling that the BBC was not indifferent as between good and evil. So I hope that specialist correspondents will not be deterred from writing commentaries on-line.

Certainly, we shall be acquiring more of our news electronically in the years to come. Primary sources will become increasingly important and accessible: the Supreme Court website, for example, will not only carry the full text of every judgment but also, for the first time, a summary of each decision written in simple language.

Trusted reporters and commentators will also have an increasingly important role to play in filtering the huge amounts of information available on-line and putting it into context. Legal journalism may be shrinking — but I hope it will not disappear for good.